Introduction
Following delivery of the judgment of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 on 6 April 2021, and the consequential orders made on foot thereof on 15 April 2021, a number of procedural changes are required to procedures at the Workplace Relations Commission (WRC). It was the unanimous decision of the Supreme Court that in the context of the Zalewski case, that an Adjudication Officer of the WRC was engaged in the administration of justice.
Legislative Changes
The Joint Committee on Enterprise, Trade and Employment met in May 2021 to discuss the matter, with Committee Cathaoirleach Deputy Maurice Quinlivan commenting:
“This [proposed] legislation would provide the necessary powers for the Workplace Relations Commission to continue to administer justice in accordance with the Constitution and follows a recent Supreme Court judgement in the ‘Zalewski’ case. Given the urgency of the matter, the Minister has asked that the normal requirement in relation to pre-legislative scrutiny be waived on this occasion. The Committee will consider this request and looks forward to discussing the Bill with the Department before making a recommendation on a PLS waiver to the Business Committee.”
Workplace Relations (Miscellaneous Provisions) Bill
The Workplace Relations (Miscellaneous Provisions) Bill 2021, is currently under consideration by the Oireachtas.
Some of the key proposals are as follows:
1 Administration of Oath
Section 41 of the Workplace Relations Act 2015 may be amended to —
“(12A) (a) An adjudication officer may require a person giving evidence in proceedings under this section to give such evidence on oath or affirmation and, for that purpose, cause to be administered an oath or affirmation to such person.
(b) A person who, in or for the purpose of proceedings under this section, gives a statement material in the proceedings while lawfully sworn as a witness that is false and that he or she knows to be false shall be guilty of an offence and shall be liable—
(i) on summary conviction, to a class B fine or to imprisonment for a term not exceeding 12 months, or both, or
(ii) on conviction on indictment, to a fine not exceeding €100,000 or imprisonment for a term not exceeding 10 years, or both.”
2 Proceedings in Public
There are a number of proposed amendments to ensure proceedings are conducted in public. For example:
Section 41 of the Workplace Relations Act 2015 may be amended to —
“(13) Proceedings under this section shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.”
Section 8 of the Unfair Dismissals Act 1977 may be amended to —
(a) by the substitution of the following subsection for subsection (6):
“(6) Proceedings under this section before an adjudication officer shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.”
Section 39 of the Redundancy Payments Act 1967 may be amended to —
“Proceedings in relation to any matter referred to an adjudication officer under this section shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of the employee or employer, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.”
3 Publication on Internet
Section 41 of the Workplace Relations Act 2015 may be amended to —
“(14) (a) Subject to paragraph (b), the Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision of an adjudication officer under this section.
(b) In publishing a decision under paragraph (a), an adjudication officer may determine that, due to the existence of special circumstances, information that would identify the parties in relation to whom the decision was made should not be published by the Commission.”
Review of the Changes
There is a commitment to undertake a review of operation of the proposed changes.
13. (1) The Minister shall—
(a) not later than 12 months after this section comes into operation, commence a review of the operation of the amendments to:
(i) the Act of 2015 effected by section 4(b) and (c);
(ii) the Redundancy Payments Act 1967 effected by section 7,
(iii) the Unfair Dismissals Act 1977 effected by section 9(a);
(iv) the Protection of Employees (Employers’ Insolvency) Act 1984 effected by section 10, in so far as it relates to the insertion, in section 9 of the said Act,
of subsections (4C) and (4D);
(v) the Employment Equality Act 1998 effected by section 11(a);
(vi) the Equal Status Act 2000 effected by section 12(a), and
(b) not later than 12 months after the commencement of the said review, make a report to each House of the Oireachtas of the findings made on the review and of 35 the conclusions drawn from the findings.
